In a 2-1 decision issued August 3, 2012 in Momenta Pharmaceuticals, Inc. v. Amphastar Pharmaceuticals, Inc., the U.S. Court of Appeals for the Federal Circuit held that the safe harbor provisions of 35 USC § 271(e)(1) can shield the defendants from liability for patent infringement arising out of their use of patented methods to satisfy…

The Higher Regional Court Dusseldorf decided on 26 April 2012 (docket I-2 U 18/12) that the admissibility (under Article 27 BR) of exclusive licensee’s patent infringement action despite pending NDA proceedings against patentee in another Member State depends on whether the declaratory judgment will have the force of res judicata against licensee. This must be…

The presentation of a product at an exhibition within Germany, constitutes use of the shape of the product (protected by trademark law) in the course of trade for advertising purposes, and this is therefore no “offering” or “putting on the market” that product in Germany . Rather, evidence must be provided which shows that the…

Last month both the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit issued important decisions relating to method of use patents in the Hatch-Waxman Abbreviated New Drug Application (ANDA) patent litigation framework. These cases underscore unique aspects of method of use patents in the ANDA context.

The Swiss Federal Supreme Court rendered its first decision regarding the new pre-trial taking of evidence proceeding in Switzerland’s new Code of Civil Procedure Law (ZPO) and in the Swiss Patent Act (PatG). More than a few patent practitioners feared that the Federal Supreme Court would confirm the challenged decision of the Court of Commerce…

At the beginning of this year, the German Federal Court of Justice (“FCJ”) rendered in “Tintenpatrone II” (“Ink Cartridge II”) (Docket No. X ZR 94/10) a decision of interest concerning the relation of patentee and exclusive licensee with regard to the claim of damages, following it decisions “Ink Cartridge I” and “Cinch-Plug”. Plaintiff (1) is…

An article in the well-known IP magazine GRUR last year carried the heading “Do exhibitors at trade fairs in Germany enjoy immunity from the courts?” The author came to the conclusion that this question had to be answered in the affirmative after he had read the Federal Court of Justice decision “Pralinenform II” (a trademark…

The right to an unpatented invention does not entitle to its exclusive use; it ceases to exist if the invention is made public without patent protection. The right to an unpatented invention encompasses no more than (i) the right to file a patent application and (ii) the right to claim the patent, in case a…

In its decision “Okklusionsvorrichtung” (Aga v. Occlutech), the Federal Court of Justice (FCJ) denied patent infringement by equivalent means since the contested infringing embodiment was disclosed in the description as an alternative to the claimed one. This decision was followed in the decision “Diglycidverbindung”. In a nutshell, the FCJ, in continuation of its decisions “Schneidmesser…